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Watersedge vs Berkley Twp.

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Old 03-23-2003, 03:31 AM
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Angry Watersedge vs Berkley Twp.

Area residents complain of noise from the deck, not justified.
They also hold restuarant responsible for loud powerboats passing in the channel by their waterfront homes....
4 hours out of an entire season, and these people ***** about a boat event.
Needless to say, there will be no Radar Shootout at that location again....

State of New Jersey
OFFICE OF ADMINISTRATIVE LAW
INITIAL DECISION
OAL DKT. NO. ABC 8944-00 AGENCY REF. NO. 2005

WATER’S EDGE RESTAURANT,
INC. T/A WATER’S EDGE RESTAURANT,
Petitioner,
v.
TOWNSHIP OF BERKELEY,
LICENSE NO. 1505-33-07-008
Respondent.
__________________________________________

Record Closed: April 8, 2002 Decided: May 1, 2002
BEFORE EDGAR R. HOLMES, ALJ
A SUMMARY OF THE RELEVANT FACTS

The Water’s Edge Restaurant (Restaurant) is a waterfront restaurant in Bayville, New Jersey. The Restaurant operates an outside deck and dining area during the summer season along with docks for patrons who come by boat. Outdoor dining on the deck generates a significant portion of summer business. There is a modified stage on the north end of the restaurant’s deck, enclosed to the rear, with speakers oriented to the south. The entertainment is provided by bands and disc jockeys.

There are complainants on Good Luck Drive to the north that have direct line of sight and sound access across open water to the deck and rear of the stage enclosure. They complain of noise from the bands and of boats racing in the channel.

In May of 1994, the Township Council of the Township of Berkeley, transferred to the restaurant’s new owners, Plenary Retail Consumption Liquor License Number 1505-33-007-006, with certain restrictions as set forth in Resolution Number 93-172-R, Resolution Number 94-160-R and Resolution Number 94-183-R. Pursuant to Resolution Number 94-183-R, the licensee was granted a conditional 30 day trial period to play music on the rear deck of the premises. That Resolution expired on June 25, 1994.

As a result of successful compliance with the imposed conditions and the complete absence of any noise complaints during this trial period, the Township Council of the Township of Berkeley on June 28, 1994 and pursuant to N.J.S.A. 33:1-32, memorialized its decision in Resolution Number 94-252-R, to amend the restrictions on Water’s Edge liquor license. The restrictions originally placed on the subject Plenary Retail Consumption Liquor License were replaced with the following “special conditions:”

No person will be permitted to consume alcoholic beverages on the porch area to the rear of the structure after 10:00 p.m., except that such beverages may be consumed on such porch area until 12:00 midnight on Friday, Saturday, and Sunday nights and holidays. No alcoholic beverages shall be permitted to be consumed outside the structure on any premised leased or owned by the licensee.

Music will be permitted on the rear deck of the subject premises adjacent to the Barnegat Bay for the term of the license, which term expires June 30, 1995, subject to Township Council jurisdiction and control over noise complaints.

No music will be permitted after 10:00 p.m. on weekdays and 12:00 midnight on Friday and Saturday nights and holidays.


At its Council meeting on June 13, 2000, the Berkeley Township Council approved renewal of Water’s Edge Plenary Retail Consumption Liquor License Number 1505-33-007-006 for the period of July 1, 2000 to June 30, 2001. Thereafter, on June 26, 2000, Water’s Edge was notified that despite the recent renewal of its liquor license by the Township Council and in response to some complaints of music and noise emanating from the establishment, Council was considering the imposition of a condition restricting the playing of outdoor music to 7:00 p.m. on weeknights and 8:00 p.m. on Fridays and Saturdays.

The Township conducted hearings on August 7, 2000 and on October 2, 2000. At the meeting on August 7, 2000, Council considered testimony regarding the restrictions on the playing of music on the deck.

After the hearing on August 7, 2000 and prior to the October 2, 2000 hearing, the petitioner engaged the services of a sound engineer, Eric M. Zwerling, President of the Noise Consultancy, LLC, in order to determine whether the amplified sound levels emitted from the deck are likely to exceed the objective sound level limits found within New Jersey’s Noise Control Code, when measured at the property of the affected residential properties.

Eric M. Zwerling concluded that: “[t]here is no doubt that the music may be plainly audible at a distance of approximately 400 feet, with lyrics clearly distinguishable, and every note of the instruments distinct. However, these sound levels almost certainly do not exceed the objective permissible sound level limits applicable to the entire state of New Jersey . . . The results of the sound study show that the measured sound levels generated by the amplified music at Water’s Edge did not at any time approach the permissible sound level limits.”

On October 10, 2000, the Township Council adopted Ordinance Number 00-35-OAB regarding noise control. The noise control ordinance specifies criteria in decibels readily measured by a sound level meter. The restaurant offered to purchase such an instrument for the police and the restaurant and to adhere to the requirements of the ordinance.

Moreover, police officers, to whom noise complaints were made by the complainants here, opined that the noise level “. . . didn’t appear to be loud to them.”

Apparently, a bigger problem for the neighbors was the racing of boats in the channel outside the restaurant dock area. Racing boats owners would also pull into the docks for drinks while idling their engines. The description of this activity seems to be a blatant violation of community safety standards, not to mention the noise generated by the engines.

The Township Council by Resolution dated October 24, 2000 and bearing Resolution Number 00-367-R. imposed additional, further, restrictions on the playing of music outside the appellant’s restaurant facility, to wit: “live or recorded music is permitted to be played on the outside deck of the Water’s Edge Restaurant between the hours of 2:00 p.m. to 10:00 p.m.” Basically, it chopped two hours off the hours the restaurant could play music on Friday and Saturday nights.

The Council imposed an additional, further restriction on the operation of the appellant’s restaurant facility. The Restaurant “is not permitted to sponsor, allow, permit, or suffer any boat races, boat shoot-outs, or boating competitions of any kind or nature whatsoever from the docks situated at the rear of the licensee’s premises. . .”

The Council gave no reason for imposing the further restrictions for the playing of music at the appellant’s restaurant facility, but did reason that the restrictions on “sponsoring, allowing, permitting or suffering any boat races” and related activities was because “such events constitute a nuisance to the adjoining neighbors residing at Good Luck Point.”
LAW AND CONCLUSIONS
There is no indication that the Restaurant owner ever violated any noise ordinance. It has never been charged with such a violation. Police officers emphatically state that they have responded to noise complaints and did not feel that the noise coming from the deck violated any ordinance. Only a very few people object. It was their objection to the music which resulted in the new condition limiting the time from 12:00 p.m. to 10:00 p.m. on Friday and Saturday nights. There was not an iota of evidence that the music would have violated the noise ordinance. The noise ordinance provides an objective standard. Anything else would be arbitrary.
On the other hand, the boat races clearly are a noise and safety problem according to the Council’s description of the races. Moreover, the Restaurant does not deny it.
The legal standard in these matters is to determine whether or not the special conditions are arbitrary, capricious and unreasonable. Kramer v. Bd. Adj. Sea Girt, 45 N.J. 268, 296, (1965).
The Restaurant concedes that the presence of racing boats in the channel and idling at its dock is a matter to be regulated by the Council and it offered at the hearing to neither sponsor nor affiliate itself with high speed boat races. It agrees that the portion of the special condition regulating speedboat racing is reasonable.
It also offered to acquire an appropriate decibel meter and to self monitor in order to comply with the standards in the noise ordinance.

In return it requested only that the special condition be amended to limit outdoor music on the deck to no later that 10:00 p.m. Sunday through Thursday inclusive and 12:00 midnight Friday and Saturday as provided in the prior special condition.

The Restaurant also volunteered to limit the starting time of music on the deck to 9:30 a.m. or later. This is to accommodate morning or early afternoon weddings.

There was absolutely no basis upon which to replace the special condition of Paragraph 3 of Resolution Number 94-252-R with the special condition of Paragraph 1 of Resolution Number 00-367-R. Not an iota of objective evidence indicates a noise problem as a result of music. Even the Township Police Officers deny that a noise problem exists.

I FIND and CONCLUDE that so much of Resolution Number 00-367-R which limits the playing of music on the outside deck from 2:00 p.m. to 10:00 p.m. is unreasonable, arbitrary and capricious.

I FURTHER FIND and CONCLUDE that the limitation on the licensee’s sponsorship, or ability to allow, suffer or permit any boat races from its deck is a reasonable exercise of police power.

Rutgers University School of Law "WatersEdge"
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Old 03-23-2003, 12:03 PM
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By stopping this one short event is not going to help the area residents. It was only another issue that they chose to pick on with the establishment.
That is not going to keep people from running up and down the bay nor will it keep them from coming into the restuarant.
Unless of course the next move from the waterfront property owners is to ask that Berkeley Twp force the restuarant to remove the docking

I wonder how many of these property owners complain of the noise coming from the rigging of all the sailboats that are moored in the area marinas. You know the sound... like someone slamming pots and pans together. That noise comes to you year round day and night. Hmmm.....

As I always said, when you move onto the water you have to expect some things. Heavy winds, big rollers, noise from any type of powerboat, noise from rigging on sailboats and kids screaming because they are kids and having fun.

That's like me buying a home on Route 35 in Mantoloking and telling the town I shouldn't have to hear the open exhaust of a motorcycle coming down the street.
They knew before building or buying a home there to expect some sort of noise. They don't like it, they should go back where they came from.
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Old 03-24-2003, 01:28 PM
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Old 03-24-2003, 01:49 PM
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Quote:
Originally posted by sharkeymarine
By stopping this one short event is not going to help the area residents. It was only another issue that they chose to pick on with the establishment.
That is not going to keep people from running up and down the bay nor will it keep them from coming into the restuarant.
Unless of course the next move from the waterfront property owners is to ask that Berkeley Twp force the restuarant to remove the docking

I wonder how many of these property owners complain of the noise coming from the rigging of all the sailboats that are moored in the area marinas. You know the sound... like someone slamming pots and pans together. That noise comes to you year round day and night. Hmmm.....

As I always said, when you move onto the water you have to expect some things. Heavy winds, big rollers, noise from any type of powerboat, noise from rigging on sailboats and kids screaming because they are kids and having fun.

That's like me buying a home on Route 35 in Mantoloking and telling the town I shouldn't have to hear the open exhaust of a motorcycle coming down the street.
They knew before building or buying a home there to expect some sort of noise. They don't like it, they should go back where they came from.
Well put Sharkey! I guess those egg beaters ain't so bad after all huh? Good luck!
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Old 03-24-2003, 03:52 PM
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Tell the old fart that complains to turn her hearing aid down.
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Old 03-24-2003, 06:48 PM
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Thanks Shane!
My egg beaters have a real nice tuned sound at 7500 rpm with an open snout...

What amazes me is they say these people are from Good Luck Point. If anyone has ever been there, they know Good Luck Point Marina is right next to these houses. How many complaints do they put in for the Marina when winterization time comes around. Smoke & Noise Must be great neighbors too huh?
Maybe all the green head flies from the marsh land these people live on will eat them enough for them to move.....
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Old 03-24-2003, 07:10 PM
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You have to keep in mind that some people who live by the water think they own the water too
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Old 03-24-2003, 07:24 PM
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Will if evert stop!!!!!!!!!!

If it's not one thing, it another.

First proposed speed limits, trying for no wake zones, and now more WatersEdge. What's next? Maybe they'll close the whole bay down, & just let the blowboaters there.

Damn, who is the trouble maker down there!!!!!!

The people without boats out number the people with boats at any given time there.

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